Chapter 2: Law Office Etiquette & Legal Ethics

Transcription

1 Chapter 2: Law Office Etiquette & Legal Ethics Chapter Outline: 2.1 Introduction 2.2 Telephone Etiquette Guide 2.3 Legal Ethics 2.4 Rules of Professional Conduct 2.5 The Top 10 Ethics Traps 2.1 INTRODUCTION An attorney may be fined, suspended, or may even lose his or her license for violating the rules of ethics in the applicable jurisdiction. So, how does this apply to staff, including legal secretaries? The answer is something called the doctrine of respondeat superior. This doctrine establishes that an attorney is liable for the acts of all those who are working under his or her direct control and supervision. Thus, if a legal secretary commits an act that is unethical while working within the scope of her employment, the court can punish the attorney as though that act was committed by him or herself. Therefore, take this chapter very seriously. Page 15

2 2.2 TELEPHONE ETIQUETTE GUIDE ANSWERING CALLS 1. Answer promptly (before third ring if possible) 2. Before picking up the receiver, discontinue any other conversation or activity such as chewing gum, typing, etc. that can be heard by the calling party. 3. Speak clearly and distinctly in a pleasant tone of voice. 4. Use the hold button when leaving the line so that the caller does not accidentally hear conversations being held nearby. 5. When transferring a call, be sure to explain to the caller that you are doing transferring them. 6. Remember that you may be the first and only contact a person may have with your firm and that first impression will stay with the caller long after the call is complete. 7. When the person the caller is asking for is not in, the following responses should be used both to produce privacy of the office staff and to give a more tactful response: What you mean: What you tell the Caller: He is out. He is not in the office at the moment. Would you like to leave a message on his voic or may I take a message? I don t know where he is. He has stepped out of the office. Would you like to leave a message on his voic or may I take a message? He is in the Men s Room. He has stepped out of the office. Would you like to leave a message on his voic or may I take a message? She hasn t come in yet. I expect her shortly. Would you like to leave a message on her voic or may I take a message? He took another day off. He is out of the office for the day. Would you like to leave a message on his voic or may I take a message? He doesn t want to be disturbed. She is busy. He is unavailable at the moment. Would you like to leave a message on his voic or may I take a message? She is unavailable at the moment. Would you like to leave a message on her voic or may I take a message? Page 16

3 TRANSFERRING CALLS To transfer a call: 1. Let the caller know who you are transferring them to. 2. Press the transfer number. 3. Dial the extension where you are transferring them. 4. Hang up you are done. To announce a call: 1. Find out the name of the caller and ask what it is in regards to (Why the person is calling). 2. Tell the caller to please hold for a moment. 3. Buzz the person the caller is calling. 4. Wait for the person to answer. 5. Tell the person the name of the caller. 6. Tell the person what the call is in regard to. 7. If the person accepts the call, inform them what line to pick up. 8. If the person does not accept the call, go back to the caller and take a message. (See the suggested response above as to what to tell the caller.) Good Telephone Procedures Remember that you are representing your firm and etiquette is very important. The use of phrases such as thank you and please are essential in promoting a professional atmosphere. Make sure to answer before the third ring. An example of a greeting can be Good Morning! Smith, Jones, and Smith Law Firm. May I help you? Use a greeting that is going to give the caller the impression that the firm is professional and pleasant. If you are currently on one line and another line rings: o Tell the first caller to Please hold. o Place the caller on hold. o Answer the ringing line saying, Good Morning. Smith, Jones, and Smith Law Firm. Can you please hold? o Place that second caller on hold. o Return to the first caller and complete the call. o Don t forget to return to the second caller o Tell them, Thank you for holding. How may I help you? When many lines ring at once, write down caller names (or who they are holding for) so you avoid asking for the same info more than once. Page 17

4 TAKING MESSAGES 1. Be prepared with a pen and message pad when you answer the phone. 2. When taking a message be sure to ask for: a. Caller s name (ask for the correct spelling if necessary) b. Caller s phone number and/or extension c. If the caller is calling from another firm or insurance company, ask the case name and/or claim number d. Ask the caller what the call is regarding 3. Repeat the message to the caller, especially confirming phone the telephone number. 4. Be sure to fill in the date, time, and your initials. 5. Place the message slip in the called party s inbox or other conspicuous place that the called party will be able to see as soon as possible. 6. Don t forget to offer to transfer to voice mail. HANDLING RUDE OR IMPATIENT CALLERS 1. Stay calm. Try to remain diplomatic and polite. Getting angry will only make the caller angrier. 2. Always demonstrate a desire to resolve the problem or conflict. 3. Try to think like the caller. Remember, their issues are important! 4. Offer to have your supervisor or the attorney talk to the caller or have the supervisor return the call. 5. Sometimes the irate caller just wants someone in a supervisory capacity to hear their story, even if they are unable to help. 6. Tell the person what the call is in regard to. MAKING CALLS 1. When you call someone and they answer the phone, do not say, Who am I speaking with? without first identifying yourself. 2. Always know and state the purpose of the communication. 3. If you told a person you would call at a certain time, call them as promised. Page 18

5 WHAT TO DO WHEN YOU MAKE A MISTAKE To make not mistakes is not in the power of man, but from their errors and mistakes they gain good learned wisdom for the future. -Plutarch Make things right. Your first responsibility is to correct the mistake. The faster you address the problem, the more credible you ll appear to others. Take responsibility and apologize. When you make a mistake, you ll usually gain stature by taking ownership and apologizing right away. You won t appear incompetent, only human. Let the matter rest. One apology suffices. Ask if you can do something else. After resolving your mistake, ask if you can help in any other way. Let others know you ve learned something. Assure those affected by your error that it won t happen again. If you have learned something from the experience that would help others in the office, share that information. Keep records. Keep a record of errors made, the causes, and their solutions. FREQUENT CALLER COMPLAINTS First, remember that presentation is everything. Treat your callers as you would hope they would treat you. The way you present yourself on the phone can leave lasting impressions of you and your firm. Common complaints include: The telephone rings for a long time before it is answered. Try to answer calls within 3 rings. Callers become frustrated when they feel that their call is not important to the firm. They place me on hold for what seems like hours! If you find yourself placing many callers on hold, write down the name and phone number of the caller and a brief description of what they are calling about. If the caller has been holding for an extended period and you know they are likely to be holding longer, pick up the line and say, I m sorry, but the person you need to speak with is still unavailable. Do you prefer to continue to hold, or would you like me to take a message or send you to their voic ? The line is busy for what seems like hours! Try to keep calls short. Don t stay on the line longer than necessary. Page 19

6 They don t clearly listen to what I am calling for and transfer me to the wrong person. Listen to the caller carefully. Before transferring the caller, be sure you understand what the caller wants and who exactly he or she needs to speak with. Repeat what they said back to them. Let me be sure that I understand your situation. This gives the caller a chance to clarify the situation, if necessary. Sometimes they disconnect me while transferring my call. Be careful when transferring a call. Sometimes accidents happen, but be especially mindful at high volume times. In order to transfer a call, first tell the caller where you are transferring him or her, then press the transfer button. The person says, Wait but then talks to other co-workers without putting me on hold and I can hear their small talk. Use the hold button! (Seems obvious, but it is a common problem.) Whenever you are going to leave a caller to check something or to talk to someone else, use the hold button. Callers should never be able to hear the background noise of your office. They answer with an aggravated voice, as if I disturbed them by calling. It is difficult to stay polite all the time, especially during high volume periods. But again, your disposition reflects on the firm. Try to treat each caller as you would hope to be treated. SURVIVAL TIPS - BATTLING BURNOUT 1. Never take the work personally. When clients complain, they are not complaining about you personally. 2. Don t take problems home. Give your work complete attention while you are there, but leave work problems at the firm when you leave. 3. Find ways to reduce stress. 4. Get help from others. Don t let yourself feel isolated and alone. 5. Remember the good news: You have a job! At the end of the day, reflect on what you have accomplished. On any given day, there will likely be more positive than negative experiences. Page 20

7 2.3 LEGAL ETHICS Legal Secretaries must be familiar with the American Bar Association (ABA) ethical rules that govern attorneys. Even though the rules do not apply directly to staff of attorneys, the lawyer may be punished if a staff person violates one of the rules as though he had committed the offense her or himself. In this part of the course, we will discuss the following topics and selected rules. As you read the rules attempt to answer the associated questions. 1. Scope of representation a. Does an attorney have to limit herself to a specific area of legal representation? 2. Diligence a. How can a legal secretary put a lawyer in jeopardy of violating this rule? How can he or she help him avoid a potential violation? 3. Communication a. How can a legal secretary put a lawyer in jeopardy of violating this rule? 4. Fees b. How can she help him avoid a potential violation? a. Can a legal secretary set fees? 5. Confidentiality a. With whom can a legal secretary discuss an active case from the law firm? b. When can she discuss a case that has been finished? c. When may a case may be discussed with a spouse? d. When can a legal secretary be called upon to testify in a case? Page 21

8 6. Conflict of interest a. Describe at least one situation where a legal secretary would be pre-empted from a case. b. How could this possibly be remedied? 7. Safekeeping property a. How can a legal secretary put a lawyer in jeopardy of violating this rule? b. How can she help him avoid a potential violation? 8. Expediting litigation a. How can a legal secretary put a lawyer in jeopardy of violating this rule? b. How can she help him avoid a potential violation? 9. Candor a. Does an attorney have to provide information to the court that damages his client. 10. Person not represented a. How can a legal secretary put a lawyer in jeopardy of violating this rule? b. How can she help him avoid a potential violation? 11. Nonlawyer assistants a. What is a nonlawyer assistant prohibited from doing on behalf of the lawyer? 12. Unauthorized practice of law a. What constitutes unauthorized practice of law? 13. Communications about lawyer services a. Can a legal secretary inform callers about a law firm's services? 14. Advertising & Solicitation a. Which of the above is permissible? b. What is the difference? Page 22

9 2.4 RULES OF PROFESSIONAL CONDUCT NEVADA RULES OF PROFESSIONAL CONDUCT ADOPTED BY THE SUPREME COURT OF NEVADA Effective May 1, 2006 and Including Amendments Through February 1, 2010 TABLE OF CHANGES TO NEVADA RULES OF PROFESSIONAL CONDUCT Key: A amended; N added; R repealed; T transferred. IN THE SUPREME COURT OF THE STATE OF NEVADA In the Matter of Amendments to the SUPREME COURT RULES OF PROFESSIONAL CONDUCT, SCR ADKT 370 ORDER REPEALING RULES OF THE SUPREME COURT RULES AND ADOPTING THE NEVADA RULES OF PROFESSIONAL CONDUCT Whereas, this court adopted Rules 150 through of the Supreme Court Rules in 1986 based on the Model Rules of Professional Conduct adopted by the American Bar Association in 1983; and Whereas, the American Bar Association formed the Ethics 2000 Commission in 1997 to review the Model Rules of Professional Conduct and amended the Model Rules of Professional Conduct in 2002 based on recommendations from the Ethics 2000 Commission and again in 2003 based on recommendations from the Task Force on Corporate Responsibility; and Whereas, at this court s direction, the Board of Governors of the State Bar of Nevada formed the Nevada Ethics 2000 Committee in May 2003 to consider whether Nevada s Rules of Professional Conduct should be amended in whole or in part, using the amended Model Rules as the basis for the Committee s review; and Whereas, the Committee met numerous times, held two public hearings, and submitted its recommendations to the Board of Governors; and Whereas, the Board of Governors modified some of the Committee s recommendations and submitted a petition to this court recommending specific amendments to Rules 150 through of the Supreme Court Rules; and Whereas, this court solicited and considered public comment on the recommended amendments; and Whereas, this court has concluded that amendment of the Nevada Rules of Professional Conduct is warranted; and Page 23

10 Whereas, it appears to this court that reorganization of the existing Rules of Professional Conduct is necessary to facilitate comparison of the Nevada rules with the Model Rules of Professional Conduct, accordingly, It Is Hereby Ordered: 1. That Rules 150 through of the Supreme Court Rules shall be repealed and Subpart G of Part III of the Supreme Court Rules shall be reserved for future amendments; 2. That the Nevada Rules of Professional Conduct shall be adopted as a set of rules distinct from the Supreme Court Rules and shall read as set forth in Exhibit A; 3. That the recommended amendments to Supreme Court Rule 163 (Organization as Client), renumbered in Exhibit A as Rule 1.13, and the recommended new Supreme Court Rule (Sale of Law Practice), reserved in Exhibit A as Rule 1.17, shall be deferred for further consideration by the court; 4. That these rule amendments shall become effective May 1, 2006; and 5. That the clerk of this court shall cause a notice of entry of this order to be published in the official publication of the State Bar of Nevada. Publication of this order shall be accomplished by the clerk disseminating copies of this order to all subscribers of the advance sheets of the Nevada Reports and all persons and agencies listed in NRS 2.345, and to the executive director of the State Bar of Nevada. The certificate of the clerk of this court as to the accomplishment of the above-described publication of notice of entry and dissemination of this order shall be conclusive evidence of the adoption and publication of the foregoing rule amendments. Dated this 6th day of February, BY THE COURT Page 24

11 NEVADA RULES OF PROFESSIONAL CONDUCT Rule 1.0. Terminology. As used in these Rules, the following terms shall have the meanings ascribed: (a) Belief or believes denotes that the person involved actually supposed the fact in question to be true. A person s belief may be inferred from circumstances. (b) Confirmed in writing, when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of informed consent. If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. (c) Firm or law firm denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. (d) Fraud or fraudulent denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. (e) Informed consent denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. (f) Knowingly, known, or knows denotes actual knowledge of the fact in question. A person s knowledge may be inferred from circumstances. (g) Partner denotes a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law. (h) Reasonable or reasonably when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer. (i) Reasonable belief or reasonably believes when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable. (j) Reasonably should know when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question. (k) Screened denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law. Page 25

12 (l) Substantial when used in reference to degree or extent denotes a material matter of clear and weighty importance. (m) Tribunal denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party s interests in a particular matter. (n) Writing or written denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording and . A signed writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing. (o) Organization when used in reference to organization as client denotes any constituent of the organization, whether inside or outside counsel, who supervises, directs, or regularly consults with the lawyer concerning the organization s legal matters unless otherwise defined in the Rule. [Added; effective May 1, 2006.] Rule 1.0 is the same as ABA Model Rule 1.0 except that it includes a definition of organization. Rule 1.0A. Guidelines for Interpreting the Nevada Rules of Professional Conduct. The preamble and comments to the ABA Model Rules of Professional Conduct are not enacted by this Rule but may be consulted for guidance in interpreting and applying the Nevada Rules of Professional Conduct, unless there is a conflict between the Nevada Rules and the preamble or comments. The following guidelines for interpreting and applying the Nevada Rules of Professional Conduct are hereby adopted: (a) The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms shall or shall not. These define proper conduct for purposes of professional discipline. Others, generally cast in the term may, are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer s professional role. Page 26

13 (b) For purposes of determining the lawyer s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as the duty of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact. (c) Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations. (d) Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer s violation of a Rule may be evidence of breach of the applicable standard of conduct. [Added; effective May 1, 2006.] Rule 1.0A is a Nevada-specific Rule. The language at the beginning of the Rule is based on former Supreme Court Rule 150(2). Paragraphs (a)-(d) incorporate language from paragraphs 14, 17, 19, and 20 of the Scope section of the ABA Model Rules. CLIENT-LAWYER RELATIONSHIP Rule 1.1. Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. [Added; effective May 1, 2006.] Page 27

14 Rule 1.1 (formerly Supreme Court Rule 151) is the same as ABA Model Rule 1.1. Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer. (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client s decision concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer s representation of a client, including representation by appointment, does not constitute an endorsement of the client s political, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. [Added; effective May 1, 2006.] Rule 1.2 (formerly Supreme Court Rule 152) is the same as ABA Model Rule 1.2. Rule 1.3. Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client. [Added; effective May 1, 2006.] Rule 1.3 (formerly Supreme Court Rule 153) is the same as ABA Model Rule 1.3. Rule 1.4. Communication. (a) A lawyer shall: (1) Promptly inform the client of any decision or circumstance with respect to which the client s informed consent is required by these Rules; (2) Reasonably consult with the client about the means by which the client s objectives are to be accomplished; Page 28

15 (3) Keep the client reasonably informed about the status of the matter; (4) Promptly comply with reasonable requests for information; and (5) Consult with the client about any relevant limitation on the lawyer s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (c) Lawyer s Biographical Data Form. Each lawyer or law firm shall have available in written form to be provided upon request of the State Bar or a client or prospective client a factual statement detailing the background, training and experience of each lawyer or law firm. (1) The form shall be known as the Lawyer s Biographical Data Form and shall contain the following fields of information: (i) Full name and business address of the lawyer. (ii) Date and jurisdiction of initial admission to practice. (iii) Date and jurisdiction of each subsequent admission to practice. (iv) Name of law school and year of graduation. (v) The areas of specialization in which the lawyer is entitled to hold himself or herself out as a specialist under the provisions of Rule 7.4. (vi) Any and all disciplinary sanctions imposed by any jurisdiction and/or court, whether or not the lawyer is licensed to practice law in that jurisdiction and/or court. For purposes of this Rule, disciplinary sanctions include all private reprimands imposed after March 1, 2007, and any and all public discipline imposed, regardless of the date of the imposition. (vii) If the lawyer is engaged in the private practice of law, whether the lawyer maintains professional liability insurance, and if the lawyer maintains a policy, the name and address of the carrier. (2) Upon request, each lawyer or law firm shall provide the following additional information detailing the background, training and experience of each lawyer or law firm, including but not limited to: (i) Names and dates of any legal articles or treatises published by the lawyer, and the name of the publication in which they were published. (ii) A good faith estimate of the number of jury trials tried to a verdict by the lawyer to the present date, identifying the court or courts. (iii) A good faith estimate of the number of court (bench) trials tried to a judgment by the lawyer to the present date, identifying the court or courts. Page 29

16 (iv) A good faith estimate of the number of administrative hearings tried to a conclusion by the lawyer, identifying the administrative agency or agencies. (v) A good faith estimate of the number of appellate cases argued to a court of appeals or a supreme court, in which the lawyer was responsible for writing the brief or orally arguing the case, identifying the court or courts. (vi) The professional activities of the lawyer consisting of teaching or lecturing. (vii) The names of any volunteer or charitable organizations to which the lawyer belongs, which the lawyer desires to publish. (viii) A description of bar activities such as elective or assigned committee positions in a recognized bar organization. (3) A lawyer or law firm that advertises or promotes services by written communication not involving solicitation as prohibited by Rule 7.3 shall enclose with each such written communication the information described in paragraph (c)(1)(i) through (v) of this Rule. (4) A copy of all information provided pursuant to this Rule shall be retained by the lawyer or law firm for a period of 3 years after last regular use of the information. [Added; effective May 1, 2006; as amended; effective November 21, 2008.] Model Rule Comparison 2007 Rule 1.4 (formerly Supreme Court Rule 154) is the same as ABA Model Rule 1.4, except that the 2007 amendments include language in paragraph (c) that was previously part of repealed Rule 7.2A(a) through (d) and (f) (formerly Supreme Court Rule 196.5) which is Nevada-specific language and has no counterpart in the Model Rules. Rule 1.5. Fees. (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and Page 30

17 (8) Whether the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing, signed by the client, and shall state, in boldface type that is at least as large as the largest type used in the contingent fee agreement: (1) The method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; (2) Whether litigation and other expenses are to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated; (3) Whether the client is liable for expenses regardless of outcome; (4) That, in the event of a loss, the client may be liable for the opposing party s attorney fees, and will be liable for the opposing party s costs as required by law; and (5) That a suit brought solely to harass or to coerce a settlement may result in liability for malicious prosecution or abuse of process. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge, or collect: (1) Any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) A contingent fee for representing a defendant in a criminal case. if: (e) A division of a fee between lawyers who are not in the same firm may be made only (1) Reserved; (2) The client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) The total fee is reasonable. [Added; effective May 1, 2006.] Page 31

18 Rule 1.5 (formerly Supreme Court Rule 155) is the same as ABA Model Rule 1.5 with two exceptions. First, unlike the Model Rule, paragraph (c) of the Nevada Rule is divided into subparagraphs. The provisions in subparagraphs (4) and (5) are specific to the Nevada Rule; there is no Model Rule counterpart to those provisions. Second, subparagraph (1) of paragraph (e) of the Model Rule has not been adopted. This subparagraph is reserved to maintain consistency with the Model Rules format. Compare Model Rules of Prof l Conduct R. 1.5(e)(1) (2004) ( the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation ). Rule 1.6. Confidentiality of Information. (a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraphs (b) and (c). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) To prevent reasonably certain death or substantial bodily harm; (2) To prevent the client from committing a criminal or fraudulent act in furtherance of which the client has used or is using the lawyer s services, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take suitable action; (3) To prevent, mitigate, or rectify the consequences of a client s criminal or fraudulent act in the commission of which the lawyer s services have been or are being used, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take corrective action; (4) To secure legal advice about the lawyer s compliance with these Rules; (5) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer s representation of the client; or (6) To comply with other law or a court order. (c) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent a criminal act that the lawyer believes is likely to result in reasonably certain death or substantial bodily harm. [Added; effective May 1, 2006.] Page 32

19 Rule 1.6 (formerly Supreme Court Rule 156) is the same as ABA Model Rule 1.6 with three exceptions. First, paragraph (b)(2) addresses the same subject matter as paragraph (b)(2) of the Model Rule, but the language is Nevada specific and is based on former Supreme Court Rule 156(3)(a). Second, paragraph (b)(3) addresses the same subject matter as paragraph (b)(3) of the Model Rule, but the language is Nevada specific and is the same as former Supreme Court Rule 156(3)(a), with the addition of the word mitigate. Third, paragraph (c) is Nevada specific and mandates disclosure under circumstances covered by paragraph (b)(1) when a criminal act is involved. Rule 1.7. Conflict of Interest: Current Clients. (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) The representation of one client will be directly adverse to another client; or (2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) The representation is not prohibited by law; (3) The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) Each affected client gives informed consent, confirmed in writing. [Added; effective May 1, 2006.] Rule 1.7 (formerly Supreme Court Rule 157) is the same as ABA Model Rule 1.7. Rule 1.8. Conflict of Interest: Current Clients: Specific Rules. (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; Page 33

20 (2) The client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) The client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer s role in the transaction, including whether the lawyer is representing the client in the transaction. (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules. (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship. (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) The client gives informed consent; (2) There is no interference with the lawyer s independence of professional judgment or with the client-lawyer relationship; and (3) Information relating to representation of a client is protected as required by Rule 1.6. (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. (h) A lawyer shall not: Page 34

21 (1) Make an agreement prospectively limiting the lawyer s liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) Settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) Acquire a lien authorized by law to secure the lawyer s fee or expenses; and (2) Contract with a client for a reasonable contingent fee in a civil case. (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced. This paragraph does not apply when the client is an organization. (k) A lawyer related to another lawyer as parent, child, sibling or spouse shall not represent a client in a representation directly adverse to a person whom the lawyer knows is represented by the other lawyer except upon informed consent by the client after consultation regarding the relationship. (l) A lawyer shall not stand as security for costs or as surety on any appearance, appeal, or other bond or surety in any case in which the lawyer is counsel. (m) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs, with the exception of paragraph (j), that applies to any one of them shall apply to all of them. [Added; effective May 1, 2006.] Rule 1.8 (formerly Supreme Court Rule 158) is the same as ABA Model Rule 1.8 with three exceptions. First, paragraph (j) is the same as the Model Rule except that its prohibition does not apply when the client is an organization. Second, paragraph (k) is specific to the Nevada Rule, retained from former Supreme Court Rule 158(9), and has no counterpart in the ABA Model Rule. Third, paragraph (l) is specific to the Nevada Rule, retained from former Supreme Court Rule 158(11), and has no counterpart in the ABA Model Rule. Like the ABA Model Rule, the Nevada Rule specifies that the prohibitions in the Rule, except for the prohibition on sexual relationships, also apply to all lawyers associated in a firm with the personally prohibited lawyer. This provision appears in paragraph (m) of the Nevada Rule and paragraph (k) of the Model Rule. Rule 1.9. Duties to Former Clients. (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. Page 35

22 (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) Whose interests are materially adverse to that person; and (2) About whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; (3) Unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) Use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) Reveal information relating to the representation except as these Rules would permit or require with respect to a client. [Added; effective May 1, 2006.] Rule 1.9 (formerly Supreme Court Rule 159) is the same as ABA Model Rule 1.9. Rule Imputation of Conflicts of Interest. (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.9, or 2.2, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm unless: (1) The matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) Any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. (c) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7. (d) Reserved. Page 36

23 (e) When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under Rule 1.9 unless: (1) The personally disqualified lawyer did not have a substantial role in or primary responsibility for the matter that causes the disqualification under Rule 1.9; (2) The personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (3) Written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this Rule. Rule 1.10 (formerly Supreme Court Rule 160) is the same as ABA Model Rule 1.10 with two exceptions. First, the Rule does not include paragraph (d) of the Model Rule. That paragraph is reserved to maintain consistency with the format of the Model Rule. Second, paragraph (e) of the Rule permits screening of lateral attorney hires to avoid imputed disqualification. The Model Rule does not permit screening in that situation. Rule Special Conflicts of Interest for Former and Current Government Officers and Employees. (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government: (1) Is subject to Rule 1.9(c); and (2) Shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. (b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) Written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule. (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term confidential government information means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. Page 37

24 (d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) Is subject to Rules 1.7 and 1.9; and (2) Shall not: (i) Participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or (ii) Negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by, and subject to the conditions stated in, Rule 1.12(b). (e) As used in this Rule, the term matter includes: (1) Any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and (2) Any other matter covered by the conflict of interest rules of the appropriate government agency. [Added; effective May 1, 2006.] Rule 1.11 (formerly Supreme Court Rule 161) is the same as ABA Model Rule Rule Former Judge, Arbitrator, Mediator or Other Third-Party Neutral. (a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent confirmed in writing. (b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer, or as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer. (c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless: Page 38